Microsoft Taking Heat For Patent Stance

Yesterday Novell released a statement disavowing Steve Ballmer's claim that Linux infringes Microsoft's IP. Linux-watch.com reports that Microsoft quickly responded with a statement of its own that softened, but did not entirely back away from, Ballmer's claim (but the article offers no link to such a statement). xtaski writes, "Everyone took notice when Ballmer spewed forth FUD about Microsoft and Linux IP. Now CIOs are asking just what did Ballmer think he was doing? They are not fooled — but rather, a little angry. ComputerWorld covers the news including one CIO who says 'There were some applications I had been thinking about moving to a Microsoft platform, but this has now totally alienated me from Microsoft.'" And an anonymous reader points us to the statement by the Open Invention Network — whose investors include IBM, Novell, Sony, Red Hat, Philips and NEC — on the Microsoft-Novell agreement. From the statement: "OIN continues to support the Linux community's ability to collaborate and innovate. Through the accumulation of patents that may be used to shield the Linux environment, including users of Linux software, OIN has obviated the need for offers of protection from others."

Are they feeling pressure?

It is interesting to see that they are starting to posture themselves in this way now. For all these years they really have not gone after anyone for patent violations - maybe that was because the going was good. Now that they have implemented all of their fancy piracy protection they need to keep others from providing alternative solutions that really are easier for a paying customer to use.

Kinda reminds me of communist Russia and their fences and guns keeping their people from leaving the country.


http://www.windows-admin-tools.com [windows-admin-tools.com]

Re:Are they feeling pressure?

It's still an asset, in exactly the same sense that the USA & USSR nuclear arsenals were assets. You have to have them, but you don't want to have to use them. Patent portfilios for the Microsoft/IBM/Oracle/Sun/HP crowd (or Intel/AMD/nVidia/ATI for that matter) have become exactly the same kind of "Mutually Assured Desctruction" scenario. The only way that OSS really plays into this is to give Ballmer some FUD ammo. Just ignore him - he can't pull the trigger, because everyone else would pull the trigger on him.

Re:Are they feeling pressure?

Ah, aside from the fact that they'd be utterly clobbered. It's very much a nuclear option. Once you strip out the immense amount of total bullshit in the article describing what Microsoft was doing, you will see (on this [advogato.org] page, that he recieved a vague call from someone in Microsoft, apparently working on their programming team, (not, note, their legal team) and decided to alter his software based upon the percieved threat of threat of legal action.

You can hardly argue that's Microsoft flexing their legal muscles. That would be about as threatening as the guy who cleans the floors at Harvard telling a student that if he cheats on his paper, Academic Affairs is going to expel him.

Now, there may be OTHER times when they have done so, but that's not one of them.

anticompetitive, barriers to entry

Patent portfilios for the Microsoft/IBM/Oracle/Sun/HP crowd (or Intel/AMD/nVidia/ATI for that matter) have become exactly the same kind of "Mutually Assured Desctruction" scenario.

Actually, that's not all they are: they are also barriers to entry, because small, commercial, closed-source competitors find it hard to enter a market in this situation. That's not what the patent system was supposed to do. And, sooner or later, it may lead to some serious scrutiny by the DOJ.

Nevertheless, it may work to the advantage of open source, since it means that new software companies may find it advantageous to figure out open source models for software that they would otherwise have released under a proprietary license.

Re:anticompetitive, barriers to entry

Other way around, I'd say.

That's the common view, and it's wrong

However, if your software uses some patented algorithm (yes, I know, that's a hideous turn of phrase) then odds are you'd never risk releasing the source, so you could probably infringe forever and nobody would ever know.

If the algorithm is important and difficult to work around, then the patent holder will know even if you ship just binaries, and they can and will compel you to produce source code. In addition, your behavior will likely be interpreted as willful infringement, exposing you to extra damages.

That is really the greatest threat to open source software from software patents: the fact that it is substantially easier to determine if an open source package is infringing. In a litigious environment, it's easy to say, "why take the risk?"

That's pure FUD (do you work for Microsoft?). Open source has been around for several decades, and I'm not aware of any serious consequences for end users from patent infringement by FOSS. First of all, for the very reasons you mention--people know they are being scrutinized--patent infringement by FOSS is rare, and when it does, people simply remove the offending code.

You're far more at risk with closed source software--infringement seems to be far more frequent, lawsuits happen often and with serious consequences, and whether you as the customer are directly liable for infringement or not, you will often still face substantial costs if your vendor is found guilty.

So far as DOJ scrutiny is concerned, does anyone know if the DOJ has ever charged a large corporation with an antitrust violation for using a patent portfolio to suppress competition, given that that is the intended function of patents?

There is ample precedent for the government interfering in how companies license patents. But what's at issue here is not the exclusionary nature of patents in general, it's the inequitable way in which it is being used: companies who cross-license the entire portfolio have no costs, while newcomers to the market may not be able to enter at all.

Re:Are they feeling pressure?

Other than the complete baloney of SCO's claim, part of the stunning failure of SCO has been in part due to the sheer genius of the GPL mk II.

Something Just dawned on me regarding GPL mk III. Lets say it got into the kernel.... And microsoft are busy distributing SuSe Linux.... Wouldn't that mean that by implication Microsoft disclaim the right to sue over Patents hypothetically violated by linux? Or hell, is that already covered in version II?

The implication of III "fixing" that would be that yet again whilst everyone is throwing rocks at our communitys favorite beardo, said beardo has yet again got it right.

viva liberation!

Re:Are they feeling pressure?

Time to roll out this classic quote from the man himself:

"If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete stand-still today. The solution ... is patent exchanges ... and patenting as much as we can. ... A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors." -- Bill Gates, 1991

It'll never happen

Everyone is infringing on everyone else's patents (if only in the most technical of senses).

The Windows vs Linux battle is a perfect example of mutually assured destruction.

Nobody will win if the lawsuits start flying back and forth. It wouldn't even be good for business.

If MS really thinks there are patent issues, then MS should either try to work out cross licensing deals that benefit or have the offending IP removed. Anything else is just FUD.

Re:It'll never happen

how will a BSD resurgence magically save us from memory leaks and bad UIs, which are userland issues?

Re:IBM power -5 overrated

If you follow the reports at Groklaw (http://www.groklaw.net/ [groklaw.net]), you will find that SCO are good at delaying things but make very little progress in getting anything proven. Also, the court is quite generous in granting their wishes for more time. In contrast, IBM's conterclaims appear a lot more convincing and I'd expect those to be successful.

So SCO is doing a rather prolonged FUD campaign, but with little hope of getting any money out of IBM. At the same time, they might have to pay IBM more damages than they can afford. I'm starting to believe what many people on Groklaw said:
SCO is doing the anti-linux propaganda for M$, not acting in its own best interests as company.

Backing away from the agreement?

I wonder if this is one of the first moves that Microsoft is making to back away from the agreement, or rather ... to back away from their original intentions (whatever they may have been).

possible goals here

These vague claims of "infringement" have certainly led to heavy discussion of Microsoft's deal with Novell. Ballmer has always been good at generating free publicity for Microsoft, and has never been too worried about whether Linux users liked him or not.

But that's just one possible goal here. It's also possible the resulting discussions will be closely watched by Redmond's intellectual property lawyers. Perhaps they hope to learn of new potential legal vulnerabilities they hadn't previously considered.

wow...

Microsoft is now so rich that they are trying to get rid of their money by trying (and soon enough failing) to sue linux.

Linux throwing chairs

When Linux started throwing chairs around the office like a spoiled child denied, then it crossed the patent line! Balmer is not amused!

Microsoft has a problem enforcing their patents.

There is a legal doctrine known as "unclean hands". http://en.wikipedia.org/wiki/Unclean_hands [wikipedia.org] It means that a plaintiff who behaves in a certain way can not get certain legal remedies. The most they can expect is actual damages. What actual damage (other than loss of a sale) does it do to Microsoft if my use of Linux violates one of their patents? Almost none.

Any plaintiff has a duty to mitigate damages. A plaintiff who does not mitigate damages is coming to the court with unclean hands. Microsoft also has the problem that it is convicted on antitrust charges.

If Microsoft wanted to sue someone for violating one of its patents by using Linux, it should have done so a long time ago. All it has now is the weapon of every bully; intimidation.

On a side note, every time I have heard a company talk about monetizing its IP, it has nothing left. SCO is the classic case of that.

Emotionalism

one CIO who says 'There were some applications I had been thinking about moving to a Microsoft platform, but this has now totally alienated me from Microsoft.'"

Should someone who makes technology decisions based on his emotional reaction to Steve Balmer's FUD really be a CIO?

Re:Emotionalism

It's not an "is this the best software package for our company right now" issue, it's an "is this vendor likely to fuck us over in the future" issue.

CIO's response is logical

Many CIO's probably did not realize the theoretical risks of using Linux prior to Ballmer's statement. I know I didn't. Unfortunately Ballmer was right to a degree ... and while CIO's and other tech professionals can deny the validity of his statement, it will be a matter for the courts to decide at some point.

Since most companies that use Linux typically have at least some Windows machines, Microsoft's perceived threat to either sue or enforce licenses for all Linux users was highly alienating and rather disrespectful of their customer base. 'What was he thinking' is right. A smart company woudn't form a half Billion dollar agreement then tell the target client base of the agreement that they're gonna be sued ... but then again, that's Microsoft's M.O. A monopoly in today's global regulatory environment takes an immensely powerful, and often ruthless, legal team. This is just Microsoft rattling that (hopefully unusable) saber ...

Re:CIO's response is logical

while CIO's and other tech professionals can deny the validity of his statement, it will be a matter for the courts to decide at some point.

In theory... but in theory, Microsoft could patent swinging sideways on a tire swing and start suing kids on playgrounds. And kindergarden teachers can deny the validity of that statement, but it will be a matter for the courts to decide at some point.

Balmer is posturing. Microsoft's lawyers have assuredly already told the big hothead that there is slim to none chance that Microsoft could possibly win any such lawsuit. Why do we know that? Because they haven't sued anybody.

If MS thought it could have won such a lawsuit, it would have sued years ago, before or during the height of the SCO fiasco, when the public's perception that Linux might contain compromising intellectual property was strongest. They didn't, though, for all of their talk and FUD and veiled threats.

Think of what a successful MS lawsuit would have done to Linux market penetration, too. Even an unsuccessful, or settled lawsuit that dragged on long enough, would have sent CIOs and execs running scared from Linux... Right into the arms of Windows.

Even Balmer listens to his lawyers.

Re:CIO's response is logical

Think of what a successful MS lawsuit would have done to Linux market penetration, too. Even an unsuccessful, or settled lawsuit that dragged on long enough, would have sent CIOs and execs running scared from Linux... Right into the arms of Windows.

The primary reason that didn't and won't happen is that one of the backers of Linux also happens to be the largest patent holder in the entire software sector (IBM). If Microsoft wants to bring a handful of patents to the war, IBM can roll out the machine guns. I guarantee you Microsoft and most other companies are infringing on one IBM patent or another.

To hell with them both.

At the company I work for, we've been using a mix of SuSE Linux (pre-Novell SuSE), FreeBSD, and Windows 2000 for years now. There's been some interest in upgrading some of the systems. It was suggested that the SuSE systems be upgraded to SUSE Linux Enterprise 10, and that the Windows 2000 systems be moved to Windows Server 2003.

Several days ago I had to submit a report to management regarding these proposed transitions. Put simply, I had to recommend against the use of the offerings from Novell and Microsoft. I don't feel that these companies are worth dealing with. Instead of putting money towards the development and improvement of their products, they've gotten themselves involved in this stupid deal. I'm sure a number of contract lawyers made quite a bit off of this arrangement. And for us, we don't need the uncertainty this deal brings.

I had to recommend that we migrate much of our corporate network to FreeBSD, with Solaris or Debian Linux being my second choices. Thankfully, we write most of our Windows software in-house using wxWidgets for the GUI and PostgreSQL as the relational database of choice, so the transition should go fairly well.

There's no doubt that Linux violates patents

that are in Microsoft's portfolio.. but 1) exactly which patents are these Microsoft? and 2) What are you gunna do about it? Nothin', that's what.

Re:There's no doubt that Linux violates patents

There's no doubt that Linux violates patents that are in Microsoft's portfolio

Actually, I think there's a shitload and a half of doubt. Especially that nobody's ever seen or given evidence of a *single* microsoft violation - and precious few violations of any sort. I can't think of any off the top of my head, but I'm not willing to SAY that there's never been one. Because as soon as I do, somebody's gonna post links pointing to them :-)

Re:Patents

That would require them to sue those competitors, or else the patent would become invalid.

Nope, that only applies to trademarks - defend them or lose them.

Patents and copyrights you can selectively enforce. Patent trolls frequently do this, going after the easily intimidated companies first to build up a warchest before tackling someone who is more likely to fight back. There are some limitations on damages if you can be shown to have known about the infringement for a while before suing, but that in no way invalidates the patent.

Threats and FUD can intimidate: Steve lip-farts

Keep your matches away when he talks.

As clear as mud...

The other shoe has dropped indeed.

Ballmer's remarks through this fiasco are evasive enough, but at least seem to be comprehensible. Bullying us into thinking, "OMG! If I use Linux, the MicroNazis will come to my door with a bill for such-a-bunch-a-dollars!" Please, Mr. B. The latest stats on school dropouts [slashdot.org] don't speak for all of us.

Speaking of dropouts, I peeked at this interview with Bill Gates [com.com] and-- is it just me, or does he not make a lick of sense? It's so filled with contra-semantics and double-speak that I can't make heads or tails of what he's really saying. If MS wants him to lead their projects, then they're being led by senility.

Now that the smoke is clearing, I can get behind Novell's take on this; inter-operability is the key to making everything work in the end. (stuff works... goo-ood.)

When it comes down to it, having a working PC, and having the stuff you need to work on a PC work, is what really matters.

Ballmer's little "made ya look!" trick has done nothing but cause a huge ruckus. It's as FUD as FUD can get.

I might even re-install OpenSuSE after all is said and done. (using Gnome this time)

it is good news for Open Source

If you use ANY non-trivial piece of software, you are likely violating someone's patent in the USA. With open source software, if a patent violation is discovered (and it is not fundamental to computing), the code can quickly be rewritten to work differently. With non-open software, I doubt the re-writing could be done as quickly, and you would remain in violation longer.

Re:By the same token...

if some corporate whistle blower were to come forward, and show that Microsoft has used even one small piece of GPL'ed code in it's Windows product, the entire product would then be bound by the GPL

False. This is actually a little bit of M$ FUD which you have somehow bought into. If Microsoft was found to have infringing GPL code in Windows, one option would be to GPL all of Windows. The other, more likely option, would be to simply remove the offending code. The exact same think any open source project would do if it was found to have infringing code found in it.

The idea that companies need to be afraid of having their closed source application forced open because some GPL code slipped in is one of the FUD meme's the Microsoft throws around to try and limit open source adoption. The reality is that the only companies that get screwed by the GPL are the ones who insist on trying to distribute GPL binaries without source knowingly even after they've been asked not to.

Novells patents are now void

they list Novell as part of the OIN, but any patents that Novell has filed are now void because they have signed a promise not to sue.

It cuts the other way too!

...They are not fooled -- but rather, a little angry. ComputerWorld covers the news including one CIO who says 'There were some applications I had been thinking about moving to a Microsoft platform, but this has now totally alienated me from Microsoft...(emphasis mine)

I guess it is also safe to say that there are those that have been totally alienated from Linux and are contemplating to moving to the Microsoft platform.

Eben Moglen on the Novell-Microsoft deal and GPLv3

Prof. Eben Moglen says that GPLv3 will prevent a user's loss of freedom [theregister.co.uk] in light of the details of the Novell-Microsoft deal. He also takes the open source movement's lack of focus on user's freedom to task by ignoring "the politics" of the situation, leaving it ripe for being moved closer to what proprietors want.

MS can just claim

That Steve forgot to take his anti-psychotic medications that day.
Massive PR Damage - Undone!
Problem - Solved!

why hasn't anyone just found out for themselves?

It isn't that hard for someone to write a shell script that, oh say, spidered the USPTO for every patent microsoft has ever filed. I know for a fact that it is very possible, and out of the about 2000 of 5000 patents that I've seen downloaded from the database so far, I've seen some very frightening results. We're not simply talking patents on code, here people. It gets much much worse. Downright fucking scary even.

I'd gladly post the link to the USPTO for you all to see for yourselves, but I've been sworn to secrecy by my friend that wrote it, not to reveal or link the info on his site itself (because he's talking with some serious gurus about what can be done in the meantime)
Before everyone rallies the troops for a war against M$, it might be wise to learn what they have up their sleeve. Otherwise we might be leading the penguins to the slaughter, and that might be exactly what they're counting on. The information IS available to anyone with enough shell scripting know-how. Find out everything you can before you make an uninformed plan of action, because this has huge implications.

I'm not saying anyone's right or wrong so far, I'm advocating knowledge of fact. Take the time and find out for yourselves. Why speculate when you can know?

It's frustration talking

And the way they've been executing on the corporate level the last few years they'd probably screw it up anyway. MSFT is way overdue for a change at the top. The only reason he's been able to hang on for so long is that, up to now, MSFT has been able to paper their mistakes with money. But that margin will get squeezed going forward. And if the OEM's start offering a choice, they'll go downhill in a hurry.

It's going to take something big to get Steveo booted out of there, something massively bad. He's not going to get the hint and leave before the company gets dragged down to pathetic mediocrity. Not that it's a long trip from where they are today. ;)

This is going to backfire on Novell

This deal is going to backfire on Novell, this, no doubt will cost them dearly sooner or later, but I guess thats for another Novell CEO to deal with.

This is only logical

In any battle where goliath is predicted to fall, there has to be a point where the goliath tries to fight harder, and dirtier than before. MS has nothing to lose by 'seeming' to be more open and more F/OSS friendly, and they have everything to gain, including hearts and minds.

The problem is that when it comes to patents, everyone, including the USPTO is looking at them more skeptically. Look at what the final outcome of this could or should be; MS looks better than before the situation, or MS gains credit with people who pay real money for MS products. MS currently doesn't have too many worries about home users switching to Linux. Its businesses and governments and educational institutions that MS has to keep on board the MS wagon. By acting open, or F/OSS friendly, they get to keep customers that were wavering... that can be billions of dollars per year. By actually pulling this off, they do more than keep money, they harm their competition in terms of market share. Every battle is not won simply on brute force, but often on preventing such force from being brought to bear against you.

The trouble here is that nobody on /. or any blog has a clue what was really said in the boardrooms, on guessing based on historically valid impressions. The end value of any of this posturing is that one side or the other will seem more valid, more honest, more useful for doing business with...

Ballmer is a greed zealot

Which is why we need people like RMS, to balance people like Ballmer.

Somebody call SCO...

It looks like Microsoft is infringing on their "using bogus lawsuit threats to spread FUD" patent.

The missing link

Portions of Microsoft's response quoted on groklaw [groklaw.net] and David Berlind's blog. [zdnet.com]

This is part of Microsoft's DNA

Microsoft has dropped to a new low. What of substance has Microsoft invented anytime lately? Perhaps the XBox. They've been riding their early entry into the PC market for 20 years. Their software is nothing great, and their entire growth M.O. is to shut out competition by virtue of their monopoly on the Windows OS. They are scared shitless that Linux is going to eventually kill much of their business.

Microsoft did this to Netscape. They tried to kill Apple years ago and only let Apple survive to prove that they were not monopolists. They funded SCO through a back door third company in their lawsuit against Linux. Now that that has failed, Microsoft is going directly against Linux. In the meantime, very little innovation has been realized from the massive profits that the company generates. Contrast with Apple. They first popularized the GUI. The 3.5 inch floppy. SCSI. PDA (Newton). Built-in networking. Hyperlinking. MP3 player with integrated software on the computer/synchronization paradigm. And they've translated their entire operating system and hardware line into a new technical architecture in less than half the time Microsoft has needed to upgrade their piss poor OS to a newer resource hogging OS with few significantly newer features.

What is so funny is that Microsoft coming out with the Zune! They see Apple with a big new music market. Microsoft wants a piece of this action! And they are going to fail, because Apple has a huge ecosystem of hardware, software, accessories, and ever car makers putting iPod interfaces in! Did you see that even the airlines are working on iPod interfaces for power, audio, and video in their airplanes?! Hahaha to Microsoft - Apple is doing the same thing to Microsoft that Microsoft has done to them in the PC OS! And I'm glad!

So I'm not usually highly emotional about these things, but Microsoft is scum! Microsoft - up yours!

Microsoft's patent bluff

If Microsoft had anything substantial and usable, they'd have sued by now, but they probably have figured out that that's pointless. Many of their patents are probably invalid or unenforceable, or even have prior art in open source software.

Furthermore, FOSS developers try hard to avoid infringing on people's patents, and Microsoft's patents are scrutinized, so the number of infringing software packages is likely small. In the few cases where Microsoft might have a valid patent claim against a piece of FOSS and could actually identify someone to sue, it would be hard for them to be able to claim willful infringement or get any real damages, and the infringing code would be removed instantaneously, making the case fall apart.

If Microsoft actually believes they have IP that's being violated, they should stop bluffing and start asserting it in court. That way, they can get what they deserve, and they create certainty for everybody else. Of course, certainty is the last thing they want.

Throwing Stones?

How many times has MS been guilty of patent infringing?

Rant: Make With the Links

(but the article offers no link to such a statement)

It is a constant frustration reading Linux-Watch or eweek because all the links go to their own articles. Especially frustrating at a site like LinuxDevices.

Ziff Davis: links make it a Web!

Crappy Intellectual Property Non-sense

All this talk about M$ intellectual property being used in Linux. I just wonder how many developers, with prior Unix development experience, Microsoft has hired that have used Unix code / derivatives inside M$ products. ;-)

The damage is done

All these statements and counter statements, claims and counter claims has thrown everything into confusion. They have taken FUD to new hieghts. Suddenly risk averse CIOs will be thinking twice or three times about open source solutions, even if this 'Much Ado About Nothing'.

The mans a rich crazy

Ballmer is rich and is crazy. Put up or shut up Steve.

Still this does not change the position of the people that I know in the FOSS that the deal with Microsoft and Novell is a cover-up for lawsuits and is meant to split and alienate the linux community.

We need counter FUD

It's time to fight FUD with FUD.

According to the Vista EULA, if you develop code on the Vista platform, MS can claim IP rights to that code.

Is that true?

Dunno... It's just what some lawyer friend told me...

question

i am just wondering but say this situation turns up:

a company holds a patent on an invention. due to the nature of the patent (all encompassing or nearly so) there is no possible clone/alternative etc. meaning that now the company holding the patent is the sole provider of that invention/service/etc

how does that tie in with the antimonopoly laws of the world?

me bad. how does that tie in with the antimonopoly laws of the united states? inventor of the patent

Stock Market

I guess neither companies shares did to well then :P

Clarification about Who Owns Linux

As I read this article I wondered WTF? What do Microsoft patent claims have to do with Novell? Does Novell own Linux now or something? Being largely ignorant of the business aspects of the Linux world, I went to Linux.com looking for news and found this reassuring statement:

Who Owns Linux?
Linux is not owned by anyone. One misconception many first-time Linux.com readers have is that this site, Linux.com, is similar to Microsoft.com, which is owned and controlled by the company that produces the Windows operating system.

Not so!

No one company or individual "owns" Linux, which was developed, and is still being improved, by thousands of corporate-supported and volunteer programmers all over the world. Not even Linus Torvalds, who started the Linux ball rolling in 1991, "owns" Linux.

(However, the trademark "Linux" is owned by Linus Torvalds, so if you call something "Linux" it had better be Linux, not something else.)

I still don't understand why Novell and Microsoft are swapping millions of dollars back and forth and how it relates to Ballmer's IP claims, but as long as apt-get doesn't start asking me for license codes I'm happy.

Re:Clarification about Who Owns Linux

No one company or individual "owns" Linux

This is correct. In the past, Microsoft has tried to define Linux as Red Hat, and failed for this reason. The whole point of this patent deal (at least from Microsoft's POV) is to narrow the definition of Linux. If successful, the deal would separate Linux into legal and illegal groups of Microsoft's choosing. If Linux can be limited to a few corporate entities, then it becomes much easier to turn on those limited number of groups and exterminate, or reign in, Linux.

I don't think that Microsoft wants to completely exterminate Linux at this point. Linux is a highly visible competitor that Microsoft can use in defense of Monopoly claims. However, Microsoft can't keep it under their thumb with such a broad definition.